The early appellate court 2012 Mine5370

If the person is actually involved (such as the appointment of a manager) in the construction subcontract relationship (title name or lump sum subcontract), the name shall not be deemed the name lending.

The name "title name" and "Blanket subcontract" are the basis for determining whether a contractor who received a contract receives "an intention to substantially participate in a construction work" and "actual involvement" in the construction process becomes the criteria for determining whether the contractor has actually participated in the construction process, so the construction manager is deemed to have actually participated in the construction process, so the disposition of this case, which is judged as name name or processing tax invoice, and imposed on it, is unlawful.

Article 21 (Determination and Correction) of the former Value-Added Tax Act (Amended by Act No. 11608, Jan. 1, 2013)

2014Nu6490 Revocation of Disposition of Imposition of Value-Added Tax

AA

Head of the North Mine District Tax Office

August 13, 2015

December 17, 2015

December 24, 2015

1. Revocation of a judgment of the first instance;

2. The instant lawsuit shall be dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The Defendant’s disposition of imposition of value-added tax of KRW 000 on May 1, 2012 against the Plaintiff on May 1, 2012 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The claim of this case is dismissed.

1. Details of the disposition;

A. On October 00, 200, KimA entered into a contract with the Plaintiff for construction between the Plaintiff and BB, the subcontractor as the Plaintiff, the contractor as the Plaintiff, and the construction amount as KRW 0 billion in all south 00,000,000,000, and to construct Han-style Building on the land surface (hereinafter “instant construction”). On October 0, 200, the contractor changed the contractor from JB to SungCC, and on December 21, 201, the contractor increased the construction amount as KRW 0 billion.

B. On October 0, 200, the Plaintiff entered into a subcontract with the subcontractor as above 0,000 won with respect to the electrical, telecommunication, and fire-fighting parts of the instant construction works. On October 0, 200, the Plaintiff entered into a subcontract with the subcontractor with the contract amount of KRW 00,000,000. On October 0, 200, the subcontractor with respect to the instant construction works with the above 00-story and the contract amount of KRW 0,000,000,000.

C. In the second half of 2011, the Plaintiff issued a tax invoice of KRW 0 billion in total of the supply value to D (representative SungCC) as an individual entrepreneur with respect to the instant construction project. From 00 floors, the Plaintiff was issued a tax invoice of KRW 00 million in total of the supply value, and a tax invoice of KRW 00 million in total, from 00,000,000 in total, from 00,000,000.

D. On October 0, 200, the Defendant issued a disposition imposing value-added tax of KRW 000 for the second period of value-added tax (hereinafter “instant disposition”) in 201 on the Plaintiff on the ground that the Plaintiff is merely the nominal lender and the actual executor is KimA, and each of the above tax invoices was issued or received without a real transaction (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 10, 23, and 32 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Summary of the plaintiff's assertion

As the Plaintiff actually participated in the instant construction, it cannot be said that the Plaintiff lent to KimA the name of the construction business, or issued or received each of the said tax invoices without real transactions. Therefore, the instant disposition on a different premise should be revoked as it is unlawful.

3. Whether the lawsuit is lawful;

According to the Defendant’s prior defense on the merits, according to each of the evidence Nos. 12 and 13 as to whether the instant lawsuit was legitimate, the Defendant can be aware of the fact that the instant disposition was revoked ex officio on or around December 16, 2015, which was pending in the trial, and thus, the instant lawsuit was sought to confirm the invalidity of the disposition that did not exist, and thus, was unlawful as there was no interest in the lawsuit.

4. Conclusion

Therefore, the judgment of the court of first instance shall be revoked and the lawsuit of this case shall be dismissed, and the total cost of the lawsuit shall be borne by the defendant in accordance with Article 32 of the Administrative Litigation Act.